On the Fragmentation of International Law and Global Health Law

Introduction

A set of intertwined compelling questions need to be answered by the Bureau of the World Health Organization (WHO) Intergovernmental Negotiating Body (INB) before presenting the results of the negotiations for a Pandemic Agreement on Pandemic Prevention, Preparedness and Response (PPPR) to the 78^th World Health Assembly (WHA). The latter is scheduled for 19-27 May 2025. The last occasion to discuss them before WHA78 will be the INB/13 on 7-11 April 2025.

The questions are the following.

How would the Pandemic Agreement impact on the already widely fragmented framework of international law in general, and global health law in particular? How is fragmentation dealt with in the Pandemic Agreement (as of the beginning of March 2025)? What will the relations be between the Pandemic Agreement and other international instruments both in global health law and beyond? How would those relations be regulated within the Agreement?

This issue, that is on the edge between substantial and procedural matters, has often been left on the margins of the INB debate. The reasons for this omission are unclear. It could have arguably been due to an initial uncertainty regarding the presence and status of Annexes and Protocols to the Agreement, or to the contemporary negotiating process of the International Health Regulations (IHR (2005)). However, any explanation is purely hypothetical at this stage.

United in Ontological Diversity: International Law, Global Health Law, and the Pandemic Agreement

In answering the questions above, three intertwined phenomena need to be preliminarily mentioned: (1) The fragmentation of international law; (2) The fragmented nature of global health law; (3) The uniformity-making function of the WHO.

The phenomenon of fragmentation in international law is certainly not a newcomer in the legal debate. As the seminal report published by the study group of the International Law Commission (ILC) evidenced almost two decades ago, international law experienced a striking increase in scope during the second half of the 19^th century. From being the language of diplomats, international law expanded to include «trade, human rights, scientific and technological cooperation» to the point that «it is difficult to imagine today a sphere of social activity that would not be subject to any international legal regulation». While united in an ontological diversity trade, human rights, scientific and technological cooperation laws, among others, contributed autonomously, in a fragmented process, to the development of a strong patchwork of both binding and non-binding legal instruments (see Toebes, Negri, Ó Cathaoir, Villarreal). Each of those instruments impacted on the regulation of global health.

Global health law is, as a consequence and by definition, a set of legal frameworks that structures global health (see Gostin, Mason Meier). For this reason, it could be discussed whether or not global health law encapsulates to some extent the practical demonstration of the fragmented nature of international law. However, this question goes beyond the scope of the present contribution. Yet global health law, if analyzed under the mere perspective of the quantitively poor (see inter alia Mason Meier, Finch) normative production of the WHO, can be partially seen as a step towards the de-fragmentation (to be read under the meaning of “unification”) of the first health-centered negotiating efforts made by the international community. Since its creation in 1948, the WHO has had a constitutional mandate to negotiate treaties, regulations or recommendations with respect to any matter within the competence of the Organization (articles 19, 21 and 23 of the WHO Constitution). Before that turning point, the international fight against infectious diseases represented the only incentive to embark into multilateral negotiations. Against this backdrop, the WHO has worked as a coherency/uniformity-making institution aimed at bringing together ratione materiae any negotiating effort aimed at driving the global population towards the highest possible level of health.

Combining and Not Dividing: The Last Draft of the Agreement

The idea of a Framework Convention on Global Health (FCGH) capable of bringing «clarity and precision to norms and standards surrounding the right to health» (see Gostin et al.) dates back to more than a decade ago. The then UN Secretary General Ban Ki-moon supported the creation of such an instrument, and he called to set the stage for a «future United Nations framework convention on global health». Arguably, the INB under its PPPR-centered mandate is nowadays trying to find the perfect formula to unify the fragmented elements of global health law within a fragmented international law scenario, while upholding the WHO core vision of cohesion in global health governance. Combining, and not dividing.

How to do it? Will the Pandemic Agreement under the “unifying mandate” of WHO law materialize the ambitions of a clarity-and-precision-led FCGH? How will it be positioned and what consequences will its adoption have on the fragmented international and global health law scenario?

Against this background, many provisions of the last draft of the Pandemic Agreement (at least in articles 1, 9, 11, 12) as they stand at the beginning of March 2025, directly interact with at least five internationally binding and non-binding agreements: the United Nations Convention on Biological Diversity (CBD), the Nagoya Protocol on Access to Genetic Resources, the IHR (2005), the Pandemic Influenza Preparedness (PIP) Framework, and the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Interestingly enough, the first draft of the Pandemic Agreement did not contain any conflict clause devoted to regulating the interaction between the Pandemic Agreement and other international instruments (see the February 2023 draft here). As stated above, the reason for this omission is unclear, at least as far as the Author of this contribution is concerned. Only later on the issue appeared (see March, April, May drafts). The Bureau is currently working towards a final version of article 26 of the Agreement, entitled «[r]elationship with other international agreements and instruments».

On the one hand, Article 26 specifies that the Parties recognize that the WHO Pandemic Agreement and the IHR (2005) «and other relevant international agreements» and «legal instruments» should be interpreted «so as to be compatible». The words “and other relevant international agreements” are highlighted in yellow, corresponding to «text for which initial convergence was reached». The words  “and legal instruments” are in blue, meaning «Bureau proposal». Hence, this crucial wording still bears a high degree of uncertainty. The rest of the provision is highlighted in green, meaning «where an initial agreement is reached». On the other hand, Article 26 generally provides that the interpretation and the application of the WHO Pandemic Agreement must be guided by the UN Charter and the Constitution of the WHO. Lastly, the article states that «the provisions of the WHO Pandemic agreement shall not affect the rights and obligations of any Party deriving from other international agreements and legal instruments».

The new text reflects what it seems to be a slight shift from the November version. Indeed, the latter specified that «[t]he provisions of the WHO Pandemic Agreement shall not affect the rights and obligations of any Party under other existing legally binding international instruments to which it is a Party, provided that the exercise of those rights and obligations is compatible with the objective of this instrument». In the latest version of the article, the reference to compatibility with the objective of the Pandemic Agreement has been replaced with a more general compatibility and non-affection clause between the Agreement and other international agreements and legal instruments.

As briefly mentioned in the previous lines, the “multidisciplinary nature” of the Pandemic Agreement has the potential of being a clear example of simultaneous validity of two (or more) norms where «each covers the facts of which the situation consists», to quote the ILC report mentioned above.

In this context, the INB seems to have moved from an approach centered on the relationship of conflict, according to which when «two norms that are both valid and applicable point to incompatible decisions, […] a choice must be made between them», to a different perspective. The latter seems to entail a presumption of compatibility. On one side, this presumption arguably hints to the relationship of interpretation, where «one norm assists in the interpretation of another […]» in such a way that «both norms are applied in conjunction». On the other, the same presumption appears to point at the principle of harmonization, according to which «when several norms bear on a single issue, they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations».

The WHO has given attention to the relationship between the Pandemic Agreement and the IHR, the Pandemic Agreement and its Annexes and Protocols, and to inter alia the CBD during the so-called “interactive dialogues”. However, it is now necessary to have a consistent debate on the impact of the new agreement on other confining “international agreements and legal instruments”. The sand in the hourglass of the INB process is elapsing, and negotiators have to come up with a forward-looking conflict clause, that ought to be as clear and specific as possible. The aim is to have a clause capable of building a sustainable and coherent PPPR framework that, guided by the uniformity-lead normative powers of the WHO, will contribute to ease the international (global health) legal framework, and not to further complicate it.